SMITH v. CLIFFS ON THE BAY CONDOMINIUM ASSOCIATION

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SMITH

v.

CLIFFS ON THE BAY CONDOMINIUM
ASSOCIATION

March 13, 2001

No. 199498

Washtenaw Circuit Court

LC No. 96-006784-CH

EARL D. SMITH and SUZANNE C. SMITH,

Plaintiffs-Appellees,

v

CLIFFS ON THE BAY CONDOMINIUM ASSOCIATION,

Defendant-Appellant.

Before: Saad, P.J., and Holbrook, Jr. and O’Connell, JJ.

O’CONNELL, J.

We review this case on remand from our Supreme Court, which
held that while defendant did not receive actual notice of a tax
sale with respect to a parcel of its land, notice mailed to
defendant’s last known (but outdated) address complied with the
minimum requirements of procedural due process. Smith v Cliffs
on the Bay Condominium Ass’n, 463 Mich 420, 427-431; 617 NW2d
536 (2000). The facts of this case were amply set forth in this
Court’s earlier opinion, Smith v Cliffs on the Bay Condominium
Ass’n, 226 Mich App 245; 573 NW2d 296 (1997), as well as that
of the Supreme Court, and we do not reiterate them here. We
affirm.

Defendant asserts that an erroneous description of the
property contained in the notice of hearing, even if it had
actually reached defendant, would not have provided defendant
with legal notice because defendant had no interest in the
property described. Defendant cites the Department of Treasury’s
subsequent correction of the error, in an affidavit recorded with
the register of deeds, as proof of the seriousness of the
mistake.

Pursuant to MCL 211.61a; MSA 7.106, defendant was entitled to
notice that a parcel of its land was to be the subject of an
annual tax sale, as well as a description of the land at issue.
As our Supreme Court noted in Thompson v Auditor General,
261 Mich 624, 652; 247 NW 360 (1933):

Such foreclosure is a proceeding in rem,
against the land itself,  and it is the holding of
the courts of this country that valid notice which must
describe with reasonable certainty the lands to be sold,
must be given before sale, and that any statute which
provides for the sale of lands for delinquent taxes which
fails to provide for description of the particular lands
to be sold is repugnant to the Constitution, because it
may deprive the owner of his property without due process
of law.

In the present case, the notice of hearing included a
thorough, detailed description of the property in question, and
the only error was the designation of "Section 4,"
instead of "Section 14." Despite this typographical
error, the challenged notice, in the hands of an interested party
of ordinary intelligence, would have served to identify the
property at issue with reasonable certainty. Therefore, while the
inadvertent omission of one of the digits in the number 14 was a
defect, it was not fatal. See Jackson v Mason, 143 Mich
355, 357; 106 NW 1112 (1906) (description with omission of
decimal point nevertheless valid). See also Mann v Carson,
120 Mich 631, 636; 79 NW 941 (1899).

Defendant also argues that the trial court erred in applying
the doctrine of laches. According to defendant, the application
of laches here required factual findings precluding summary
disposition. As an initial matter, we note that the trial court
only hinted at the doctrine of laches, remarking that "after
this very, very late date suddenly now someone wants to come in
and claim that they have the right to redeem." Assuming that
the trial court did apply laches, which is doubtful, we need not
determine whether its ruling was in error. Our Supreme Court
rejected the merits of defendant’s due process argument, and we
do so today with respect to the property description issue.
Therefore, because defendant’s claims of error are without merit,
if the trial court improperly applied the doctrine of laches, any
error was harmless.